Thursday, May 15, 2014

The CAFC affirmed the TTAB’s decision upholding a Section 2(a) refusal to register the mark STOP THE ISLAMISATION OF AMERICA for “providing information regarding understanding and preventing terrorism.” The appellate court ruled that the Board’s finding that the mark may be disparaging to a substantial composite of Muslims in the United States was supported by substantial evidence and was in accordance with the law In re Pamela Geller and Robert B. Spencer, 110 USPQ2d 1867 (Fed. Cir. 2014) [precedential]. [oral argument (mp3) here].

In determining whether a mark is disparaging under Section 2(a), the proper inquiry was set forth in In re Lebanese Arak Corp.:

1) what is the likely meaning of the matter in question, taking into account not only dictionary definitions, but also the relationship of the matter to the other elements in the mark, the nature of the goods or services, and the manner in which the mark is used in the marketplace in connection with the goods or services; and

(2) if that meaning is found to refer to identifiable persons, institutions, beliefs or national symbols, whether that meaning may be disparaging to a substantial composite of the referenced group.

The Board found that the term “Islamisation,” as used in the mark, had two likely meanings: (1) a religious meaning: “the conversion or conformance to Islam” and (2) a political meaning: “a sectarianization of a political society through efforts to ‘make [it] subject to Islamic law.’” It concluded that the mark may be disparaging to American Muslims under both meanings because in both cases, the mark, when used with the recited services, associates Islamisation with violence and terrorism.Appellants conceded at oral argument that the subject mark is disparaging under a religious meaning of Islamisation. But they maintained that the Board “ignore[d] the overwhelming evidence in the record that the term ‘Islamisation’ has only been used in the public domain to refer to a political and military process replacing civilian laws with Islamic religious law.” They contended that the Board improperly relied “on arbitrary and anecdotal evidence” in determining the meaning of the mark.

The CAFC ruled that Appellants were incorrect in asserting that the political meaning was the only meaning of “Islamisation.” In any case, the CAFC ruled that substantial evidence supported the Board’s finding that the subject mark is also disparaging in the context of the political meaning of Islamisation.